Nost v. Broadhead et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION 36 . Petitioner's Amended §2254 Petition (Doc. 10 ) is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 9/16/15. (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aage Nost, No. CV-13-01614-TUC-JGZ Petitioner, 10 11 v. 12 ORDER Lyle Broadhead, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate Jacqueline Rateau that recommends denying Petitioner’s Amended 17 Habeas Petition filed pursuant to 28 U.S.C. §2254. (Doc. 36.) As thoroughly explained 18 by Magistrate Judge Rateau, Petitioner’s petition is untimely. As Petitioner’s objections 19 (Doc. 37) do not undermine the analysis and proper conclusion reached by Magistrate 20 Judge Rateau, Petitioner’s objections are rejected and the Report and Recommendation is 21 adopted. 22 Before Petitioner can appeal this Court's judgment, a certificate of appealability 23 must issue. See Fed. R. App. P. 22(b)(1) (the applicant cannot take an appeal unless a 24 circuit justice or a circuit or district judge issues a certificate of appealability under 28 25 U.S.C. § 2253(c)). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may 26 issue only if the applicant has made a substantial showing of the denial of a constitutional 27 right. In the certificate, the court must indicate which specific issues satisfy this showing. 28 See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an 1 issue of appeal is debatable among reasonable jurists, if courts could resolve the issues 2 differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 3 473, 484-85 (2000). Upon review of the record in light of the standards for granting a 4 certificate of appealability, the Court concludes that a certificate shall not issue as the 5 resolution of the petition is not debatable among reasonable jurists and does not deserve 6 further proceedings. 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 1. The Report and Recommendation (Doc. 36) is accepted and adopted; 9 2. Petitioner’s Amended §2254 Petition (Doc. 10) is denied and this case is 10 dismissed with prejudice; 11 3. A Certificate of Appealability is denied and shall not issue; and 12 4. The Clerk of the Court shall enter judgment accordingly and close the file in this 13 matter. 14 Dated this 16th day of September, 2015. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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